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Law field study presentation

Presented by-Palash goyal

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Absolute Title A Negotiable instrument means promissory note, bill of exchange, or cheque, payable either to order or to bearer

Freely Transferable

Absolute Title

In Writing

Unconditional

Certain Sum

Payee must be a certain PersonSignature a must.

Certain Time

Delivery Essential

Stamping is Mandatory.

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TYPES OF NEGOTIABLE INSTRUMENTS

•In writing, signed, stamped

•Unconditional promise to pay

•Money only

•Certain party

•On demand or certain date

•Certain sum

•Parties – Drawer, Payee

Promissory Note

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Bill of Exchange

TYPES OF NEGOTIABLE INSTRUMENTS

•Writing, signed, accepted, stamped•Unconditional order to pay•Money only•Certain party•Certain sum•Parties – Drawer, Drawee & Payee

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Writing, signedUnconditional orderIssued by specified banker, certain payeeOn demandCertain amountMust bear a date

TYPES OF NEGOTIABLE INSTRUMENTS

CHEQUES

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TYPES OF NEGOTIABLE INSTRUMENTS

HUNDIS

•Drawn in any local language in accordance with the custom of the place.

•For transfer of money without its actual physical movement.

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Dishonor Of Negotiable Instruments

•Insufficient balance.•Invalid Signature.•Specific Reasons eg “a/c closed, stopped payment”.•Cancellation on cheques.•Tampered cheques.•When “payable at par” is not mentioned for outstation cheques.

Non-acceptance by Drawee.• Drawee does not accept

within 24 hrs • Drawee not entitled to accept.• Drawee is a fake person, or

disappears.• Bill is conditional.• Not signed by all drawees(in

case of partnership)Non payment by Drawee at maturity

CHEQUE BILLS OF EXCHANGE

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FRAUD

Fraud Intentional wrong doingTo cause loss or harmTo get personal benefit

Measures To Avoid Fraud.oAfter online payment make sure you call customer care of your bank.oMake sure you keep secrecy regarding your negotiable instrument.

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I am looking for advice regarding a cheque bouncing case against my husband. his uncle has filed this case. My husband was owing some money to his uncle for which he issued him two cheques, one for dec 2010 n other for january 2011. In dec we gave him cash for almost 70% of the amount we were suppose to give him as we got the pr visa for canada and a have to soon fly for canada. At the time when we gave him money, he said that he will give as the cheque back as he was not having it at that moment. Then we came to canada in a week. As per the verbal consent between my husband and his uncle that my husband will pay the rest of the money in two months and he will give back both the cheques. after coming here when we called him regarding this he said that i will not give back ur cheques and he totally refused that we havent given him any money.

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Case study

Simer

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Then he started threatening on phone and started abusing n then now after after a year of all this things we found through some relatives that he has filed a case against my husband and also he has said this to our relatives that court has issued anon bale able warrant against my husband. And to the main fact we havent received any notice or any legal documents regarding all this going on in India. So what should we do now.

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Any cheque bouncing case can be won by the accused. All it requires is some perseverance on the part of his lawyer. I say this because the complainant has to prove many things before he can drive home a conviction. He has to adduce evidence to prove that there was a legal liability and the cheque was issued to him by the accused in discharge of this legal liability. Appear in the court and get hold of a really good lawyer

Regards,Ashish DavessarAdvocateDelhi, Chandigarh, Amritsar08427414792

Ashish

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Issue a stop payment order to your Banker...it can be done by phone too. Ie. if your cheques have not been presented to the bank and the same has not been actually honoured....by doing this you could save yourself from a cheque bounce case...or even if one has been then get saved from the 2nd case atleast.... prevention is better than cure. Especially since you are ot sure on if there actually is a case.

1. Do you have any proof of the cash payment?

2. Any close trust worthy relatives who could co-ordinate with you for the legal matters? If so do begin to speak to them to know what the actual ground reality is - could begin with enquiring in the local police station, your old neighbors of any legal/court notices.

3. Approach the nearest Indian Embassy/High Commission - they would be of big help to you.

Buzz

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Thank for all the valuable advice. As we are in Canada right now and my husband is not planning any trip for India for another 2 years. So that anything we can do from here. or if I go to India n do some proceeding for the case. And also will there be any legal problem for me if I go to India. I mean anything against me can be done by them.

Simmer

Do not go personally...handle from out of India...U do not want to be stuck in India when the rest of your family is in canada...Learn to remote control operation.

Buzz

Thanks for your advice. but the thing is I have my parents n siblings there and I want to go n meet them now. it means there can be some legal problems for

me too. what can I do from here

Simmer

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Get them to cross check if there is a case against you...if there is back off...else go!!

Buzz

THERE IS NO CASE AGAINST ME ITS AGAINST MY HUSBAND FOR CHEQUE BOUNCING AND I DNT HAVE ANY CONCERN WITH THIS CASE. WHICH WAS FILED AFTER WE LEFT INDIA. EVEN THE CHEQUE WAS PRESENTED TWO MONTHS LATER TO THE WRITTEN DATE. ANYWAYS MAIN CONCERN IS THAT IS THERE ANY POSSIBILITIES IF HE CAN DRAG ME IN THIS CASE. I AM PLANNING TO GO AND GET A LAWYER AS SOON AS I REACH THERE FOR THE FOLLOWING CASE PROCEEDINGS. WILL I BE ABLE TO PROCEED THE CASE ON HIS BEHALF.

Simmer

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If the liability was incurred by your husband and he is the one who issued the cheques, he alone can be made liable under the law. The complainant has no remedy against you. The remedy under Section 138 NI Act is criminal in nature. Criminal Liability does not fasten on to the relatives of the accused. Therefore, you cannot be made liable unless and until you were a part of the entire transaction culminating in the bouncing of the cheque/cheques. A cheque can be presented to the bank for encashment anytime within its validity period or six months, whichever is larger. If you have any documentary evidence which can vouch for the fact that your husband paid off 70% of the debt, it will come to your aid. You can pursue the case on the behalf of your husband.

Ashish DavessarAdvocate

no i am not apart of all this. N also we dont have any evidence because it was just me n my husband who went to his uncle place to give the payment. Actualy he is my husband's first uncle and we never even thought that he use this cheques for all this things. I mean we thought that as we have paid some amount n we are wiling to pay the other so everything is fine. its just after we left india some one mistracked him of doing this. u know greed of money makes man to forget all relations . Its just he wants as to pay him more money. Anyways as soon as i reached there i will be hiring a lawyer for all this legal proceedings n see what happens.

Simmer

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Feel free to revert for anything more

Ashish DavessarAdvocate

If your relative informed you that a non bailable warrant has been issued against your husband and have the copy of the court summon, it would be best to knock the doors of court for stay on execution of non bailable warrant. Once their is a stay, their is no risk of coming to India for your husband. As far as you are concerned their is no legal liablity upon you and you are free to come and go.

lawyerscba

Thankx everyone for the advice.........

Simmer

Reference- legal service India . com

Lnk- http://legalservices.co.in/forum/topic/Advice-for-cheque-bouncing-case.htm

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THE INDIAN CONTRACTACT 1872

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A CONTRACT is an agreement creating and definingobligations between the parties

According to HALSBURY, it is, “an agreement between two ormore persons which is intended to be enforceable at law & isconstituted by the acceptance by one party of an offer madeto him by the other party to do or to abstain from doing someact.”

MEANING

19AGREEMENT = OFFER + ACCEPTANCE

According to Section 2(e) an agreement is definedas “ every promise and every set of promisesforming the consideration for each other”.

A promise is defined as an accepted proposal asSection 2(b) says “ a proposal when acceptedbecomes a promise “ Therefore it can be said thatan agreement is an accepted proposal.

CONTRACT = AGREEMENT+ENFORCEABILITY AT LAW

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Essentials of a valid contract

•The agreement should be between two parties. An•agreement is the result of a proposal or offer by•one party followed by its acceptance by the other.•The agreement should be between the parties who are competent to contract.•There should be a lawful consideration and lawful object in respect of that agreement.•There should be free consent of the parties, when they enter into the agreement.•The agreement must not be one, which has been declared to be void.

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Proposal of offer

The term proposal has been defined in section2(a) as follows:

“ When one person signifies to anotherhis willingness to do or abstain fromdoing anything with a view to obtainingthe assent of that other to such act orabstinence, he is said to make aproposal.”

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The willingness to do or abstain from doing something,

i.e. the proposal or offer must bemade with a view to obtain the assent of theother party thereto.For example, A’swillingness to sell his radio set to B for Rs.500 if B accepts to purchase the same,amounts to proposal by A for the sale of theradio set. But if a statement is made withoutany intention to obtain the assent of the otherparty thereto that cannot be termed asproposal.

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Intention to create legal relationshipIn order that an offer, after acceptance, can result in a validcontract it is necessary that the offer should be made with anintention to create legal relationship. Promise in the case of asocial engagements is generally without an intention to createlegal relationship, such an agreement cannot be considered tobe a contract. Thus an agreement to go for a walk, to go tomovie, to play some game, or entertain another person with adinner, cannot be enforced in a court of law. Sometimes theparty may expressly mention that it is not a formal or legalagreement, whereas in some other cases such an intention couldbe presumed from their agreement.

The test to know the intention of the parties is objective and notsubjective. Merely because the promisor contends that therewas no intention to create obligation would not exempt him fromliability

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In the case of Meritt Vs. Meritt, (1970) thehusband and wife were the joint owners of abuilding which was subject to a mortgage to abuilding society.The husband left thematrimonial home to live with anotherwoman. At that time, at the insistence of thewife, the husband signed a note saying thatthe wife will pay all outstanding amounts inrespect of the house and in return “I willagree to transfer the property into yoursole ownership”. It was held that in thiscase it was clear that the parties intended tocreate legal relationship and, therefore, thehusband was bound by the contract

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Communication of offer

An offer when accepted results in acontract. An offer can be accepted onlyafter the same has come to the knowledgeof the offeree. It means that the offer has tobe communicated to the offeree in order thatthe offeree can accept it. According tosection 4,“ the communication of a proposal iscomplete when it comes to the knowledgeof the person to whom it is made.”

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an offer has not yet been communicated, even if somebodyacts according to the terms of the offer, he cannot be deemed tobe the acceptor of the offer. Acting in ignorance of an offer doesnot amount to the acceptance of the same. This point may beexplained by referring to the case of Lalman Shukla Vs. GauriDutt. (1913)In this case the defendant’s nephew absconded from home. Theplaintiff, who was defendant’s servant, was sent to search themissing boy. After the plaintiff had left in search of the boy, thedefendant issued handbills announcing a reward of Rs. 501 /- toanyone who might find the boy. The plaintiff who was ignorant ofthis reward, was successful in searching the boy. When hecame to know of the reward, which had been announced in hisabsence, he brought an action against the defendant to claim thisreward. It was held that since the plaintiff was ignorant of theoffer of reward, his act of bringing the lost boy did not amount tothe acceptance of the offer, and therefore, he was not entitled toclaim the reward.

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